Ben Chorin

Ramblings of a post-denominational frummer yid. Comments to benchorin613@yahoo.com

Sunday, June 29, 2008

To fully appreciate the insanity of today's cabinet decision in favor of releasing killers for two Israeli captives, note that Israel admits that it does not really know if the captives are alive or dead. News flash for the brain dead: if they were alive this morning, they are dead now.

If they are returned dead, Kuntar should be returned the same way. (HT for link to zalman)

Tuesday, June 10, 2008

Two draft laws that recently passed a first reading in the Knesset are illustrations of how good intentions on the part of short-sighted legislators can lead to bad law, if not catastrophe.

The more benign of the two is a law proposed by MK Gideon Saar of Likud that requires a majority of 80 MKs for ratification of an agreement ceding Israeli sovereignty on the Golan. While the result of such legislation is entirely agreeable, the foolishness lies in the fact that the law itself can be -- and almost certainly will be -- passed with the support of far fewer than 80 MKs. The theoretical possibility of a small number of MKs requiring a large number of MKs for some legislative purpose just makes no sense. It's also futile. Consider the current example: the law requiring 80 MKs for ceding the Golan can be repealed without 80 MKs (either an ordinary majority or 61 MKs would be sufficient, depending on the final draft), so that the support of 80 MKs will, in any event, not actually be required in practice.

Such legislative shenanigans should not be tolerated just for the appearance of some short-term political advantage. In the end they will come back to bite us.

The less benign draft law requires an indicted Prime Minister to resign. To appreciate the full insanity of such a law, consider the current law, apparently passed when cooler heads prevailed. A Prime Minister is only forced to resign when 1) he has been convicted of a crime with moral turpitude AND 2) all appeals have been exhausted AND 3) 61 MKs have voted to depose him. (Note that 61 MKs are always sufficient to replace a Prime Minister, provided that they agree on a replacement; in case of conviction, only the requirement for an agreed replacement is waived.) The reason for all these requirements is simply separation of powers. We don't want the Court to depose a Prime Minister; this is the job of the legislature.

The current proposal would waive ALL three requirements. In fact, any Attorney General could depose a prime Minister at will just by cooking up an indictment. Effectively, this would mean that every Prime Minister would be held hostage to the Attorney General, who could simply raise an eyebrow to get a wayward Prime Minister to fall into line. And since Attorney Generals, though theoretically servants of the government, are in fact servants of the Court, this would only further exacerbate the existing absurd imbalance of power in favor of the judicial branch. It is no wonder that the Court's friends on the left support this legislation, but it is hard to fathom the depth of short-sightedness required for those on the right to support this law, just because its ostensible proximate target is Ehud Olmert.

There is a common thread connecting the above two pieces of silly legislation. In each case, the Knesset does not trust itself to act wisely and honorably in some future instance and hence wishes to now tie its own hands. While each proposed remedy is ineffective, one can hardly argue with the diagnosis.

Saturday, June 07, 2008

Olmert will be brought down by the Knesset, not the justice system, which is how it should be in a parliamentary system. Nevertheless, it is interesting to consider on what charges he'll ultimately be nailed by the prosecutors.

The three main charges that are generally mentioned are bribery, campaign finance violations, and not reporting gifts. It will be hard to nail him on any of these.

Bribery -- The prosecution will need to demonstrate that Olmert received money with the intention of providing some quid pro quo (even if no specific such qpq was contemplated). This is a matter of intention and therefore hard to prove. In the case of Talansky, specifically, I doubt Olmert is even guilty of bribery, though I'm fairly sure Talansky passed him bribes from bigger fish.

Campaign financing violations -- This is tricky. Here is the law. Allowances for receiving contributions were intended as a leniency on the gifts law, so that instances in which these allowances do not apply are meant to be handled more stringently. However, due to awkward wording in the original law, instances in which the allowances do not apply are in fact entirely exempt from the sanctions in this law. Now pay careful attention to paragraph 28. The law applies to candidates in a party that has open primaries and only in the nine months preceding elections (these conditions have since been changed).

Again, these limitations were intended as a kula: when these conditions don't hold, receiving any money was intended to be forbidden. Conveniently for Olmert, the Likud did not hold open primaries in the relevant elections, so this law is not applicable to his situation. The Gifts Law is applicable.

Failing to report gifts -- While by any reasonable interpretation of the Gifts Law, Olmert is dead in the water, it is actually the law and not Olmert that is dead. This is because in 2007 the Attorney General needed to effectively destroy the law in order to save Shimon Peres. The State Comptroller had written a scathing report showing that in 2005 Peres had accepted $320,000 from Haim Saban, Bruce Rapoport and S. Daniel Abraham, which he did not report. In order to get him off, Mazuz discovered that paragraph 2 of the Gifts Law refers to "a gift given to a public servant, as a public servant" and decided that Peres received the gifts not as a public servant, but as a symbol. (I am not making this up, I promise.) In other words, that law is dead.

Nevertheless, the prosecution has Olmert dead to rights on at least one charge. Campaign finance laws require that he file an affidavit stating what campaign contributions he received, including a statement that the provided list is complete. Since he presumably did not declare the envelopes from Talansky, he is plainly guilty of entering a false declaration.

Anyway, by the time all this plays out, we will have long forgotten the Dark Period when some trivia question named Olmert was Prime Minister.